Should I Get a Legal Separation?

Posted on April 04, 2013 11:37am

Couples struggling with a marriage are faced with many questions. Where did we go wrong? What do we do now? What is the best choice for me and my family? In some cases the answer may be a legal separation.

Divorce vs. Separation

Prior to making the decision to legally separate or divorce, it is vital for parties to understand the difference between the two. In both a legal separation and a divorce, the court will rule on the same issues:

  • Property Distribution
  • Debt Distribution
  • Spousal Maintenance/Alimony (if applicable)
  • Parenting Plan/Custody (if applicable)
  • Child Support (if applicable)

The court will instruct the parties as to their legal interests and obligations regarding these issues. In most cases, property and debts acquired after separation will be the responsibility of the incurring party. The court will also intervene in the event one party is not abiding by their legal obligations.

In legal separations, although the court may rule on the issues above, the marriage will not be legally dissolved or terminated. Parties cannot legally remarry.

When Legal Separation Becomes Necessary

There can be any number of reasons parties may choose a legal separation over a divorce. In many cases, a legal separation is necessary to protect certain rights or interests of one or both parties such as:

  • Retention of Medical Benefits: Spouses must stay legally married for one spouse to remain eligible for health insurance available to the other spouse.
  • Eligibility to Receive Military Benefits: Spouses must stay legally married for a certain period of time for one spouse to remain eligible for benefits under the Uniformed Services Former Spouse Protection Act (USFSA), including military retirement.
  • Eligibility to Receive Federal Government Benefits: Spouses must stay legally married for 10 years to retain eligibility for certain Social Security benefits.
  • Maintain Immigration Status: Spouses must stay legally married for one spouse to maintain immigration status.
  • Preservation of Tax Benefits: Spouses can stay legally married to remain eligible for better tax benefits.
  • Preservation of Various Other Rights: Spouses can stay legally married to preserve various other rights, such as hospital visitation.

In addition to remaining eligible for certain benefits, parties may seek a legal separation instead of a divorce for other reasons, such as:

  • To avoid conflict with the religious convictions of one or both spouses
  • To avoid the stigma which may be attached to divorce, including feelings of shame, disgrace, or failure
  • To allow time for the spouses to determine whether divorce is what they really want

Moving Forward

In the event one or both spouses decide a legal separation is the preferred course of action or is necessary for them, the question then becomes: "What do we do next?" While certain states and jurisdictions allow for the drafting of a legal separation agreement, many states require a decree, or similar court pleading signed by a judicial official and filed with the local court. In many cases a legal separation can be converted to a divorce in the future.

In determining what may be the best course of action, it is advisable to speak with a qualified attorney. A divorce lawyer can discuss the potential advantages and disadvantages of both a legal separation and a divorce, advise parties as their best options, and explain the processes and proceedings necessary to pursue the chosen course of action.

For more information, contact a divorce attorney at McKinley Irvin, or read more about the types of assets in a divorce.

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